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Whiplash reforms: Publication of pre-action protocol gives substance to new claims process (Part 2)

  • 05 March 2021 05 March 2021
  • UK & Europe

  • Insurance & Reinsurance

Whiplash reforms: Publication of pre-action protocol gives substance to new claims process (Part 2)

Following from Part 1 of our consideration of the Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (“the Protocol”), we have considered the remaining headline elements of the Protocol once the issue of liability has been resolved within the confines of the Official Injury Claim portal (“the Portal”).

Medical evidence

Where a whiplash injury is alleged, a medical report must be obtained. This first report can be obtained once a full or partial admission is made by the compensator or where the injury is disputed. As noted in our previous piece, any claim involving a denial of liability should have resolved this issue via a determination of the court by the time the first medical report is obtained.

The first medical report has to be a fixed costs medical report from a medical expert instructed via MedCo (unless the claimant resides outside England and Wales). Where the claimant is unrepresented, the Portal will generate the instructions to the expert, including details of the alleged injury submitted by the claimant during notification. The instructions must also contain details of the defendant’s version of events if liability is partially disputed or causation denied.

A further report can also be obtained if it is recommended by the first expert, the claimant has not recovered per the prognosis or is receiving continuing treatment. The initial report may also recommend that further time is required before a prognosis can be made.

These reports will be paid for by the compensator, albeit the need for a further report can be challenged. Any fee paid to obtain medical records can be claimed too.

Claimants may also check and challenge the factual accuracy of the report. Should the expert refuse to make amendments relating to factual accuracy, then it may be submitted to the compensator with arguments “that the report is incomplete or inaccurate”.

Ready for settlement

When the claimant is ready to settle, they must submit the following to allow the compensator to make an offer:

  • The medical report(s)
  • The List of Losses and documentation in support
  • Document for fees – such as unpaid medical reports, medical records

The compensator then has 20 days to make an offer, broken down into its constituent parts, unless causation remains disputed or the value of the claim exceeds the scope of the Protocol. If no offer is made, then the claimant may issue proceedings.

If the offer is accepted, then the payment should be made within 10 days (or 30 days if a valid CRU certificate is unavailable to allow appropriate repayment of benefits).

Settlement in the Portal represents final settlement of all claims for injury and other protocol damages, but the claimant can still pursue the non-protocol vehicle related damages (set out in detail below).

If an offer is rejected, then counter-offers can be made by either party, whether they are higher offers by compensators or lower offers by claimants. Offers can be withdrawn 10 days after being made.

Interim payments

Throughout the Portal process, a request for non-injury damages can be made by the claimant, or the compensator can make a voluntary payment in general or for specific items.

If a request is made for an interim payment, and the compensator refuses, the claimant can start proceedings to make an order for payment, again the claim will be stayed at that stage.

Non-protocol vehicle related damages

Should the claimant issue proceedings in relation to claims not settled in the Portal, then any outstanding non-protocol vehicle damages, such as credit vehicle repair and hire charges will need to be addressed. If there are claims of this nature, they need to be added to the Portal claim prior to proceedings being issued. The claimant will need to complete and upload onto the Portal the NVC claim document and evidence in support,

The insurer has 15 days to complete the NVC response document.

If the claim value exceeds £10,000 total at that stage, then it should be removed from the Protocol as appropriate.

New Practice Direction

Should the claimant need to issue proceedings, then the 129th update to the CPR provides for the introduction of Practice Direction 27B: Claims under the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents - Court Procedure.

This practice direction provides bespoke procedures for dealing with those disputes which arise out of the operation of the Protocol. As set out below in Table 1 within the Protocol, each type of case has an individual section of Practice Direction 27B identified which sets out the process for dealing with that claim once litigated.

For those who wish to consider the specifics of Practice Direction 27B in full and the stated progression of each of those types of claims, the link is here.

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